Focus turns now to unfilled judgeships

Governor, local judges may make appointments

As the dust settled from the 2012 General Assembly, the empty seat on Richmond’s general district bench was not the only funded judgeship left unfilled.

While the House of Delegates’ vote to block the election of Richmond prosecutor Tracy Thorne-Begland to a judgeship made headlines around the country, there were other vacancies left unfilled and nominees who did not win Assembly approval.

Two circuit court seats passed over – and one to be vacated by the newest Court of Appeals judge – could be filled by Gov. Bob McDonnell. “We will be announcing an application process soon,” said spokesman Jeff Caldwell.

The circuit court vacancies are in the Sixth Circuit, where Judge Samuel T. Campbell of Prince George retired in January, and the 10th Circuit, where Judge Richard S. Blanton of Farmville retired in 2011. Nathan C. Lee of Hopewell was nominated by the House for the Sixth Circuit and Kimberley Slayton White of Halifax was nominated for the 10th District.

The names of Lee and White were left off the list of nominees in the Senate.

There also will be a vacancy on the 29th Circuit bench when Judge Teresa M. Chafin of Tazewell takes office in June as a judge of the Court of Appeals of Virginia. The prevailing freeze on filling judgeships does not apply when judges are appointed to other judgeships.

While the governor gets the chance to make recess appointments to the circuit bench, local circuit judges can make interim appointments of district-level judges.

There remain unfilled general district seats in the Sixth, Ninth and 13th Districts.

While Hopewell attorney Bruce A. Clark Jr. was elected to the seat of retired Judge Kenneth W. Nye, Hopewell Prosecutor Elbert D. Mumphery IV was passed over in the Senate for another Sixth District general district judgeship, that of J. Larry Palmer, who retired in 2011.

Mumphery declined to comment on why he might have been rejected. “It goes to the judges for appointment, but I have no idea how it’s going to play out,” he said.

The Ninth District vacancy was created when General District Judge Michael E. McGinty of James City County was elected to a circuit judgeship.

The 13th District seat went unfilled because of House opposition to the nomination of Thorne-Begland, Richmond’s chief deputy commonwealth’s attorney.

Two legislators who supported Thorne-Begland in the Assembly told the Richmond Times-Dispatch they would urge the city’s circuit judges to appoint him to the bench. Del. G. Manoli Loupassi, R-Chesterfield, said he thought the House vote might be different a second time around. Other supporters anticipated that, if Thorne-Begland were again up for election at the Assembly, conservative groups would mount an even stronger opposition to his candidacy.

Halifax attorney Robert H. Morrison was passed over in the Senate after a House nomination for the 10th District Juvenile and Domestic Relations Court bench.

Lee said he had no comment. Morrison and White did not return calls for comment.

Del. Benjamin Cline, R-Amherst, said he did not know why the Senate rejected four judge nominees. “We put forward candidates; the Senate did not,” he said. “I guess they decided they didn’t have any candidates to put forward for those seats.”

Other possible funded vacancies could arise under a provision of McDonnell’s budget amendments. The amendment, which passed the Assembly, would unfreeze any trial court judgeship if the vacancy occurs between Aug. 1 and Dec. 1 of this year, and if the incumbent judge would not have been subject to mandatory retirement before next Feb. 16.

Del. Lacey Putney, I-Bedford, told the House May 14 the provision was designed to meet the concern of Botetourt General District Judge Louis K. Campbell about his retirement plans. “This judgeship is already funded, it does not take any money,” Putney said.

Putney said the amendment was made general in nature to provide a remedy for similar situations around the state.

Del. Scott Surovell, D-Fairfax, objected, saying the measure represented a departure from efforts to unfreeze judgeships based on objective needs.

“It seems to me it encourages a lot of strategic behavior,” Surovell said. With a carefully timed retirement, he said, a judge could clear the way for either the governor or circuit judges to appoint a replacement and keep the judgeship funded.

“What that does is it takes away from us the ability to appoint judges,” he said. “We shouldn’t be making special exceptions for anybody in our current budget environment.”

Del. R. Steven Landes, R-Verona, said the amendment was a good way to ensure busy courts get the judges they need, despite tight finances. “If you don’t do this, we’re going to make it even worse,” Landes said.
The amendment passed the House 93-3 and met no objection in the Senate.